Opinion
Supreme Court No. S-12405.
February 18, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge, Superior Court No. 3AN-05-8308 CI.
Danita Turner, pro se, Wasilla.
Maryann E. Foley, Law Office of Maryann E. Foley, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A divorced spouse appeals the trial court's property division order, including the classification of her inheritance as marital and the equal division of the marital estate. She also claims that the court (1) wrongfully denied her motion for a change of venue, (2) granted motions against her without giving her adequate time to oppose them, and (3) ignored her own motions. More generally, she claims the trial court was biased against her and violated a canon of judicial conduct by expressing anger and impatience with her.
We address these arguments in turn and affirm in full.
II. FACTS AND PROCEEDINGS
A. Facts
Danita and Dennis Turner married in 1987. They moved to Alaska in 2003. They have no children.
Dennis is a retired, disabled firefighter and has not worked since 1990, relying instead on an annual disability income of approximately $25,750. Danita works full time as a nurse and earns around $65,000 annually. In 1999 Danita inherited about $336,000; that same year Dennis inherited about $25,000.
Neither Dennis nor Danita maintained a separate bank account during the marriage; all income and inherited funds were placed in their joint accounts. They used these joint accounts to pay all bills and routine expenses, including mortgages on their successive homes, and to purchase an airplane, a boat, a horse trailer, and other recreational vehicles, all of which were jointly titled. As of the date of separation, they had approximately $18,000 in their joint accounts.
In February 2005 Dennis moved out of the couple's home and into an outbuilding on their property. In May he left altogether and filed for divorce.
B. Pre-trial Proceedings
Danita objected to Dennis's request that the marital estate be equitably divided, instead asking that "the assets and liabilities of the parties not be equitably divided by the Court." She filed a counterclaim alleging Dennis had "abandoned the marriage," and "absconded with marital assets and [her] personal property"; she requested Dennis be ordered to disclose the location of "all property he ha[d] taken."
Danita concurrently filed several motions, including one for a change of venue. She asserted that Dennis had filed the divorce action in Anchorage (where he then resided) and not Wasilla (where Danita continued to live in the couple's home) to inconvenience Danita and her prospective witnesses. Danita stated that witnesses would testify that Dennis mentally abused, threatened, and stalked her, and would also testify to "essential facts" about the couple's property, including that Dennis gained entry into their airplane hangar after the locks had been changed and flew away with the couple's airplane. Dennis responded that the proposed witness testimony would be "irrelevant" because the sole issue at trial was "the issue of property distribution." Dennis admitted to having taken "his airplane" as well as "the marital truck," obviating the need for witnesses to testify to those facts.
At a June 2005 hearing the court denied Danita's venue motion because: (1) Anchorage was not an improper venue; (2) the "marginal increase in travel time for witnesses who may or may not testify [did not justify] a change"; and (3) Danita had failed to show that she would be "significantly disadvantaged" by an Anchorage venue. The court set dates for a pre-trial settlement conference in October and trial in November and ordered the parties to exchange "global property division proposals" in advance of the conference.
A number of Danita's other motions were discussed at the hearing, including her motions for interim attorney's fees and denial of spousal support to Dennis. These were summarily disposed of as not "technically ripe," "preemptive," and not "on the table." Danita's attorney withdrew a motion to bifurcate the trial when the judge asked why it was necessary.
In August Danita served notice that her attorney had withdrawn, apparently because he refused to comply with her request to file certain motions. Acting pro se she moved for clarification and reconsideration of the court's disposition of her earlier motions. She also requested that the court vacate the settlement conference and trial dates and schedule an evidentiary hearing to allow the parties to ascertain relative contributions to marital assets. The court denied the motion but noted that "Danita may raise issues concerning discovery at the settlement conference. Both parties shall exchange full information concerning property and debts."
Dennis filed a motion for an appraisal of the couple's Wasilla home, asking the court to order that the parties share the expense equally and cooperate with the appraiser. The court granted the motion the next day and ordered the appraisal, also ordering that Dennis bear the cost of the appraisal until the court heard from Danita on the matter. Danita filed her opposition to the motion the following day. She argued that Dennis's motion was "disingenuous," that to grant expedited consideration "would not be prudent under the circumstances," and that she should not be "forced to endure the unnecessary expense" of an untimely appraisal.
In the following weeks Danita moved for additional time to seek counsel and for a stay of the court's orders pending interlocutory appeal. She also filed a notice of unavailability. Dennis partially opposed the motions, stating "Ms. Turner can take all the time that she wants to seek and hire counsel," but that the case should proceed regardless of whether she was represented by an attorney. Dennis also moved on an expedited basis to compel Danita's deposition.
The court ruled on these motions in a lengthy order dated September 19, 2005, acknowledging Danita's perception that the court had issued a "flurry of rulings in favor of Dennis and contrary to her." The court noted that with respect to the appraisal
(1) each party was at liberty "to obtain as many appraisals as it was willing to pay for," so long as the appraisals did not interfere with the ability of the party in possession of the house to enjoy it; and (2) whether Danita objected to the appraisal was irrelevant as she was not required to pay for it and was not bound to accept the appraiser's opinion of the home's value.
The court expressed empathy for Danita's position and declined to force her "to proceed through critical steps while she seeks counsel." The court declined to expedite consideration of Dennis's motion to compel her deposition. The court also relaxed the schedule for settlement, even stating "if a party does not want to settle the issues, that is fine, just cancel the conference and prepare for trial." But the court noted Danita could not delay indefinitely. The court denied Danita's motion to stay proceedings pending interlocutory review and urged her to "obtain counsel or realize that she will be proceeding unrepresented." She was ordered to propose three dates and times for her deposition.
Danita failed to appear at a deposition for which she had been served notice and "re-notice." She likewise failed to respond to Dennis's written settlement offer and to appear at a settlement conference on October 5, 2005. Dennis informed the court that Danita had not complied with the plan that she pack his belongings and allow him access to the property to retrieve them. Dennis's counsel suggested the court should issue a show-cause order and threaten Danita with arrest to get her to comply and cooperate; the court responded that although arrest was an option, it "doesn't really get us very far." But the court agreed something needed to be done to get Danita's attention: the court issued a writ of assistance for Dennis to get his belongings at the Wasilla residence, an order allowing Dennis to obtain income information from Danita's employer, and an order for a show-cause hearing.
Danita responded with an "Emergency Opposition to Plaintiff's Un-Served Motion," protesting orders she perceived as based on motions not properly made or served on her. She characterized the court's issuance of the show-cause order as an "abuse of process" and criticized Dennis's counsel for transmitting confidential documents to the non-private fax machine at her workplace. She concurrently filed an opposition to Dennis's motion to compel her deposition. She noted she felt she was being forced to participate in settlement negotiations before certain facts related to the parties' relative financial contributions to the marriage had been established, and expressed a desire to develop a discovery plan with Dennis. She also alleged bad faith by Dennis's counsel for scheduling depositions when he knew she either had no notice of or was unavailable for them. Finally, she described her efforts to find competent counsel and indicated she hoped to retain counsel shortly.
Danita was represented by counsel at the show-cause hearing on October 28, 2005. The court was impatient with Danita's attempts to explain why she should not be held in contempt for "simply blowing this off entirely." Her counsel explained there had been some confusion since the withdrawal of her former attorney, but that "much of what was not done has been done . . . as of today." The court did not hold Danita in contempt, but stated it was "going to be very suspicious if [the court did not] get cooperation" now that she had counsel.
B. Trial Proceedings
The parties went to trial on May 10, 2006. Both parties argued for an award of the majority of the marital estate: Danita argued for seventy percent of the estate because she had made a greater relative contribution to the marital assets, and Dennis argued for sixty percent of the estate because he had less earning potential. Danita further asserted that her inheritance had not been transmuted into marital assets but rather had been used to purchase various items of personal and real property that "she always held out as her separate property."
On May 16 the court issued a divorce decree and property distribution order. The court found that Danita's inheritance, as well as Dennis's smaller inheritance, had been "placed in joint accounts and used by the parties for normal household expenses as well as for certain major purchases," including successive homes, vehicles, a plane, a boat, and other recreational equipment, "all of which were jointly titled and financed." The court found no indication that the parties intended to keep their inheritances separate from jointly held funds and concluded that the inheritances had been transmuted into "joint assets" to be used "for marital purchases and expenses."
The court ordered the estate divided equally. The court acknowledged that "[c]ombining income and inheritances, Danita contributed 80% of the marital in[-]flow." But offsetting Danita's greater contribution to the marital estate was the fact that Dennis had lesser earning potential, and the court found Danita had "agreed not only to transmutation of her entire inheritance but also to Dennis not working." The court concluded that "the most equitable option is not to deviate from the presumed equal division of the estate. . . . Both [would] take from the marriage equally, having made a variety of mutual decisions that left them with the mix of assets and prospects that now exists and which was entirely predictable."
C. Post-Trial Proceedings
On August 28, 2006, a show-cause hearing was held in response to Dennis's allegation that Danita had not made a payment to a creditor as she had been ordered. Danita claimed to have followed the judge's order "[e]xactly as it was written," which she represented required that she "turn over the thousand dollar deposit [from selling a horse trailer] directly to" the creditor. But because the order did not specifically instruct her to counter-sign the check, she did not do so. The creditor could not cash the check and it was returned to Danita. Characterizing Danita's action as a statement to the court, "in so many words[,] screw you, I'll show you," the court held Danita in contempt and imposed a $300 sanction. But the court suspended the sanction on the condition that Danita make the payment, and she tendered cash.
Also at that hearing Danita disputed she had agreed at an earlier hearing to return certain items to Dennis, namely those listed on "Exhibit 90.1." Danita was told to listen to a recording of the hearing to refresh her memory, and a deadline was set for a response to Dennis's request that she comply with the agreement. Danita ultimately conceded her attorney had agreed to Dennis's "wish list," but contended that she had thought she was agreeing to the "appraisal list," not to Exhibit 90.1; she purported to rescind "any agreement, expressed or implied, that [was] based on the Exhibit 90.1."
A flurry of motions and responses were filed in the days that followed. The court issued a comprehensive order on September 12, 2006. The court denied Danita's motion to rescind the agreement, holding that "there could have been no confusion about the document being discussed," and a writ of assistance was issued for Dennis to pick up his belongings.
D. Appeal
Danita appeals: (1) asserting that the superior court abused its discretion in denying her motion for a change of venue; (2) taking issue with the court's property distribution order, including the finding that her inheritance was transmuted into marital property and dividing the estate fifty-fifty; and (3) alleging that the court was biased against her. Some of Danita's allegations of bias are inadequately briefed and therefore waived, but we will address her allegations that the court ruled on motions without giving her time to respond and violated canons of judicial conduct in expressing anger and impatience with her.
When a party fails to adequately argue a point, the point is deemed abandoned. State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980). Other arguments, including Danita's general assertions that the court's findings of fact were clearly erroneous, are addressed where specifically relevant to issues being decided.
III. DISCUSSION
A. Change of Venue
Alaska Statute 22.10.040 authorizes the superior court to change venue for a number of reasons, including to promote the convenience of the parties or witnesses, or when "unnecessary expense and inconvenience" to one party "were intentionally caused" by the other's choice of venue. Whether to change venue is within the discretion of the trial court, and we review for an abuse of that discretion.
AS 22.10.040(2), (4).
Maier v. City of Ketchikan, 403 P.2d 34, 39 (Alaska 1965), overruled on other grounds, Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978).
Danita argues that because the trial was in Anchorage and not Wasilla, she incurred "inconvenience and unnecessary expense" and those who would have testified on her behalf were unable to do so because, as nurses, they "could not leave patients under anesthesia while they were recovering from surgery." But Anchorage was not an improper venue. It would have been no less inconvenient for Dennis to commute to Palmer than for Danita to commute to Anchorage, and she was permitted to appear telephonically to ease the burden. The proceedings focused on valuation and distribution of marital property, and Danita failed to show how her proposed witnesses' testimony would be relevant and material. The trial court also noted that "it's [not] all that unusual for Wasilla witnesses to participate in Anchorage proceedings." Any additional expense or inconvenience to Danita was relatively insignificant, and Danita failed to show that the expense and inconvenience were "unnecessary" to resolve this dispute. The court acted within its discretion in denying Danita's motion for change of venue.
See Crowson v. Sealaska, 705 P.2d 905, 908 (Alaska 1985) (holding a party seeking venue change for convenience of witnesses must show by affidavit (1) why the witnesses' attendance would be inconvenient and (2) that the witnesses' expected testimony would be "admissible, relevant and material to an issue in the case.") (citing Coughlan v. Coughlan, 423 P.2d 1010, 1015 (Alaska 1967)).
B. Division of the Marital Estate
1. Standards
A trial court has broad discretion to divide marital property. A three-step process requires the trial court to: (1) classify property as separate or marital; (2) assess the value of the marital property; and (3) allocate that property equitably. Alaska Statute 25.24.160(a)(4) directs the trial court to take into consideration a variety of factors for an equitable division, including the time and manner of the acquisition of property at issue, the parties' relative earning capacities, financial condition, age, and health. The court also is permitted to consider the "conduct of the parties, including whether there has been an unreasonable depletion of marital assets," but in general, the property is to be distributed "without regard to which of the parties is in fault."
Hatten v. Hatten, 917 P.2d 667, 671 n. 9 (Alaska 1996) (citing Bays v. Bays, 807 P.2d 482, 485 n. 4 (Alaska 1991).
Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002).
AS 25.24.160(a)(4)(A)-(I).
AS 25.24.160(a)(4)(E).
AS 25.24.160(a)(4).
Whether separate property was transmuted into marital property and asset valuation are fact-findings reviewed for clear error. We review the trial court's equitable division of assets for abuse of discretion, reversing only if the division is clearly unjust. 2. The court did not err by holding Danita to a personal property division agreement.
Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005) (transmutation to marital property); Martin, 52 P.3d at 726 (asset valuation).
Martin, 52 P.3d at 726; see also Hatten, 917 P.2d at 671 n. 9.
Danita complains that the trial court erred in interpreting and enforcing an agreement regarding the distribution of personal property without considering her request that the agreement be rescinded. Danita also asserts that the trial court erred by not addressing her allegations that Dennis had taken property and by not requiring that he "provide a complete accounting of all that he had taken."
Danita's arguments lack merit. First, Danita had the opportunity to carefully review Dennis's property distribution proposal (Exhibit 90.1), and through counsel she stipulated that the listed property be distributed as indicated. She has provided no explanation, legal or factual, why she should not be bound to that agreement. Second, Danita failed to pursue at trial her allegation that Dennis had taken and not disclosed property to the appraiser; after the court adopted the distribution agreement for the property listed in Exhibit 90.1, the court moved on to other matters with no objection from Danita. In her brief to us, Danita fails to substantiate allegations that Dennis took items of value or that the court did not address her assertions to that effect. The argument is thus waived. 3. The court did not err by determining that Danita's inheritance was transmuted into marital property.
See Brady v. State, 965 P.2d 1, 20 (Alaska 1998) (holding inadequately briefed argument waived despite court's solicitude for pro se litigants); Williams v. State, 629 P.2d 54, 62 (Alaska 1981) (holding failure to object results in issue being waived on appeal).
An inheritance is generally considered separate property even if received during marriage, and the mere act of commingling does not automatically transmute separate property into marital property. But a rebuttable presumption of transmutation arises when a party places separate property into joint ownership. Danita has failed to rebut that presumption here: she does not genuinely dispute that she deposited her inheritance into a joint savings account from which she and Dennis withdrew funds to pay home mortgages and to purchase a plane, a boat, and other recreational vehicles, all of which were jointly held and titled. Roughly nine years after Danita's $336,000 inheritance was deposited, approximately $18,000 remained in the parties' joint accounts. The remaining funds likely could be traced to a variety of sources, including Dennis's inheritance. Not only does this evidence fail to rebut the presumption of transmutation, it strongly supports the inference that Danita intended to transmute her inheritance into marital assets. 4. The court did not abuse its discretion by dividing the marital estate equally.
Lundquist v. Lundquist, 923 P.2d 42, 47 n. 3 (Alaska 1996).
Carlson v. Carlson, 722 P.2d 222, 224 (Alaska 1986).
Chotiner v. Chotiner, 829 P.2d 829, 833 (Alaska 1992); see also Abood v. Abood, 119 P.3d 980, 984 (Alaska 2005) ("[P]lacing property in joint title raises a presumption of transmutation."). This presumption can be rebutted by evidence that separate property was placed in a joint account solely as an "administrative convenience." Abood, 119 P.3d at 985 n. 13 (citing Julsen v. Julsen, 741 P.2d 642, 646-47 (Alaska 1987)).
Danita argues that the joint account was actually an "inheritance account" and that other marital funds deposited into it "would [thus] appear to have been transmuted into Danita Turner's inheritance." This argument is frivolous.
See Miller v. Miller, 105 P.3d 1136, 1141 (Alaska 2005) ("[S]eparate property becomes marital property if the parties demonstrate an intent to treat the property as marital.").
Danita asserts that the court's equal property division does not properly take into account the Merrill factors, i.e., the factors set forth in AS 25.24.160.
See Merrill v. Merrill, 368 P.2d 546, 547-48 n. 4 (Alaska 1962).
AS 25.24.160 provides in relevant part:
(a) In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide
. . . .
(4) for the division between the parties of their property, including retirement benefits, whether joint or separate, acquired only during marriage, in a just manner and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property, including retirement benefits, of either spouse acquired before marriage when the balancing of the equities between the parties requires it; and to accomplish this end the judgment may require that one or both of the parties assign, deliver, or convey any of their real or personal property, including retirement benefits, to the other party; the division of property must fairly allocate the economic effect of divorce by being based on consideration of the following factors:
(A) the length of the marriage and station in life of the parties during the marriage;
(B) the age and health of the parties;
(C) the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;
(D) the financial condition of the parties, including the availability and cost of health insurance;
(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets;
(F) the desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has primary physical custody of children;
(G) the circumstances and necessities of each party;
(H) the time and manner of acquisition of the property in question; and
(I) the income-producing capacity of the property and the value of the property at the time of division.
Specifically, she asserts that "[t]he trial court did not consider the refusal of Dennis Turner to work, or consider that Danita Turner had to work two and three jobs at a time to pay for all of the bills, while Dennis Turner spent any money he received from his disability on himself, and squandered marital assets," or that property was acquired with her inheritance.
Under the facts established at trial, the court could have exercised its discretion to divide the property in Danita's favor — eighty percent of the marital in-flow is a significant majority of the marital estate, and the record, taken as a whole, suggests that the couple's "recreational lifestyle" may have been geared more towards Dennis's interests than Danita's ( e.g., flying and solo vacations). But the court also could have exercised its discretion to divide the property in Dennis's favor — not only because of Dennis's lesser earning capacity and disability, but also because Dennis's lack of employment appeared to be a mutually acceptable arrangement. Instead the court noted that Danita and Dennis had "[b]oth decided to live a lifestyle that had advantages [namely `a more leisurely and recreationally full life'] and disadvantages," namely forgoing the opportunity for Dennis to work or otherwise contribute more to the estate, so the "most equitable option [was] not to deviate from the presumed equal division of the estate."
We affirm the trial court's decision. The court's factual findings are amply supported by the record, the court properly considered the relevant statutory factors — including Dennis's conduct during the marriage, to the extent that Danita put his conduct at issue at trial and to the extent that it was relevant — and the court was within its discretion to conclude that an equal property division was equitable in this case. C. Allegations of Court Misconduct 1. Motion Practice
Danita asserts that — to the extent that the court was authorized to consider "the conduct of the parties" by AS 25.24.160(a)(4)(E) — it failed to afford her adequate opportunity to present her argument that Dennis intended to defraud her of her inheritance. She raises this argument for the first time on appeal and has thus waived it. See Pasco v. State, 45 P.3d 325, 328-29 (Alaska 2002) (holding that this court will not consider arguments raised for the first time on appeal). The fact that Dennis was "voluntarily unemployed" and contributed far less than he potentially could have to the marital estate was not lost on the court — at trial, the court chided Dennis for not seeking employment more actively. This suggests that the court, in dividing the marital estate, did consider Dennis's "conduct" during the marriage.
Danita also argues in her brief that these court proceedings deprived her of her property without due process. Because we find that the court acted properly and pursuant to the law when it divided the marital estate and because the end result was not unjust, we need not analyze whether Danita received full due process of law — she did. An adverse decision is not enough to give rise to a due process violation. Danita has alleged no facts to show that the trial court was biased or that she was denied an opportunity to be heard.
Danita argues that the court violated Alaska Civil Rule 77 by granting Dennis's motion for an appraisal of the Wasilla home before she had time to oppose it. Rule 77 provides that opposition to a motion must be filed within ten days. The court ruled on Dennis's motion for an appraisal and accompanying motion for expedited consideration the day after the motions were filed, giving Danita no time to oppose them.
In McGill v. Wahl we held that it was error for the trial court to rule on a motion for an award of attorney's fees before the opposing party was given an opportunity to respond. We specifically noted that Rule 77(c) requires parties be "allowed ten days to submit an opposition to a motion filed against their interest." But here the motion for an appraisal was not necessarily against Danita's interest. An appraisal is an inevitable step in the process of dividing the property, and the court noted Danita was not bound to Dennis's appraisal: "[i]f she wants to get her own appraisal then she is free to do so." Moreover, the court denied Dennis's request that the parties share the cost of the appraisal. Any error was therefore harmless.
McGill v. Wahl, 839 P.2d 393, 399 (Alaska 1992).
Id.
Danita also argues that the court abused its discretion by "not considering" her motions. She fails to identify specific unconsidered motions or to otherwise elaborate beyond saying "[t]he court ignored Danita Turner's motions filed pro se and those filed by her through counsel, without addressing them." Danita made repeated requests to vacate the settlement conference and trial and to schedule an evidentiary hearing on the matter of her inheritance. It is not entirely clear from the record why an evidentiary hearing was never scheduled, as the court itself indicated that such a hearing might be appropriate and valuable. What is clear is that Danita was trying to avoid dividing the property. It may be that the court — although expressing some empathy for Danita — was becoming impatient with her tactics and wanted to proceed with the asset division. The court had discretion to do so, Danita has not shown that the court abused that discretion, and we see nothing to suggest that the court made a prejudicial mistake.
2. Bias
Danita alleges that the trial court threatened, intimidated, coerced, humiliated, retaliated against, and was prejudiced and biased against her throughout the proceedings. After attempting to discern specific claims in this broad assault against the trial court, we will discuss whether the court (1) properly exercised authority to impose sanctions, and (2) violated canons of judicial conduct more generally. a. Threatening to sanction Danita was not inappropriate.
Danita also argues that the trial court violated her right to self-representation by ignoring her motions. She correctly notes that the Alaska courts hold pro se pleadings to less stringent standards. The record shows, however, that the trial court was careful to ensure that Danita had time to seek counsel and showed lenience in its rulings. The mere fact that Danita received adverse rulings while acting pro se does not establish that the trial court forced her to "forfeit her right to self[-]representation." Danita has alleged no facts supporting this claim.
Danita claims "the trial court abused [its] discretion by sanctioning [her] because she followed the court's order." Danita is presumably referring to the court's finding at the August 28 show-cause hearing that she was in contempt of its earlier order to make a $1,000 payment to a creditor. Danita knew the third-party check she sent to the creditor would be useless without her counter-signature. Her action did not accomplish the goal of the order, but she stated she "did what [she] was told to do in the court order," "[e]xactly as [the order] was written." The court expressed frustration with what it characterized as Danita's "screw you" attitude and held her in contempt.
When a court finds a litigant to be in civil contempt, it may impose various sanctions, including a fine of up to $5,000, "as the court finds appropriate." Here, the court fined Danita $300, but suspended that sanction on the condition she pay the $1,000 due the creditor. She complied, and the court did not require her to pay the sanction.
AS 09.50.020(a) (2007) ("A person who commits a civil contempt is subject to damages, a civil penalty of $5,000 or less for each violation, and other orders as the court finds appropriate."). Civil contempt, as opposed to a criminal contempt, is distinguished by the fact that the purpose of the fines is remedial. Cont'l Ins. Cos. v. Bayless Roberts, Inc., 548 P.2d 398, 405 (Alaska 1976).
We review a trial court's decision to impose civil contempt sanctions for abuse of discretion, although we review the underlying factual findings under the clear error standard. Given Danita's decision not to countersign the check and her admission that she knew the check was worthless without her counter-signature, we find it was well within the superior court's discretion to impose sanctions. b. The court's conduct did not amount to a violation of the Code of Judicial Conduct.
Matanuska Elec. Ass'n v. Rewire the Bd., 36 P.3d 685, 690 n. 4 (Alaska 2001).
We also note that the court acted with considerable lenience toward Danita when it suspended the sanctions.
Although the trial court did express anger and frustration towards Danita at various points in the proceedings, we do not find that the court crossed a threshold of impropriety. Canon 3(B)(4) of the Code of Judicial Conduct requires that a judge be "patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity." Commentary to that Canon notes that "[t]he duty to hear all proceedings with patience, dignity, and courtesy is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate."
Alaska Code of Judicial Conduct, Canon 3B(4) cmt.
The United States Supreme Court stated, on the question of judicial bias:
[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance and even anger, that are within the bounds of what imperfect men and women . . . sometimes display.
Liteky v. United States, 510 U.S. 540, 555-56 (1994) (quoted in Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001)) (emphasis in original).
We adopted this standard for judicial bias in Hanson v. Hanson.
Here, the court's "expressions" of anger were provoked by Danita's conduct. Although containing inappropriate slang, the court's comments were within tolerable bounds of judicial behavior. Moreover, Danita takes several remarks out of context and even mischaracterizes empathetic comments. In light of all the circumstances and the standard articulated in Hanson, the court's conduct did not violate the judicial code.
For example, Danita states in her brief that the court threatened to have her arrested. In reality, it was opposing counsel who suggested the court "threaten her with an arrest warrant." The court said "worse comes to worst is I have her arrested which . . . doesn't really get us very far."
IV. CONCLUSION
We AFFIRM.